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SCHEDULES

Article 3

SCHEDULE 1SCHEDULED WORKS

In the Borough of Poole—

An opening (bascule) bridge, approach spans and road across the Back Water Channel, Poole, supported on reinforced concrete supports commencing on the east side of the Back Water Channel at reference point 400484E, 090711N and extending in a westerly direction for a distance of 296 metres and terminating on the west side of the Back Water Channel at reference point 400739E, 090562N.

Article 18

SCHEDULE 2ACQUISITION OF CERTAIN LAND

(1)

(2)

(3)

Area

Number of land shown on the deposited plans

Purpose for which land may be acquired

Borough of Poole

4, 11, 12, 15, 16, 17, 18, 19 and 20

Access for construction and maintenance of the authorised works.

23 and 24

The removal of structures required in connection with the authorised works.

28, 29, 30 and 32

The carrying out of dredging works.

30, 31, 32 and 33

The provision of permanent mooring facilities.

34, 35, 40, 43, 44 and 45

The provision of mooring facilities for temporary use and the provision of access for construction and maintenance purposes.

Article 21

SCHEDULE 3MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1. The enactments for the time being in force with respect to compensation for the compulsory purchase of land shall apply with the necessary modifications as respects compensation in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2.—(1) Without prejudice to the generality of paragraph 1, the Land Compensation Act 1973(1) shall have effect subject to the modifications set out in sub-paragraphs (2) and (3).

(2) In section 44 (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 4—

(a)for the words “land is acquired or taken” there shall be substituted the words “a right over land is purchased”; and

(b)for the words “acquired or taken from him” there shall be substituted the words “over which the right is exercisable”.

(3) In section 58(1) (determination of material detriment where part of house etc. proposed for compulsory acquisition), as it applies to determinations under section 8 of the 1965 Act as substituted by paragraph 5—

(a)for the word “part” in paragraphs (a) and (b) there shall be substituted the words “a right over land consisting”;

(b)for the word “severance” there shall be substituted the words “right over the whole of the house, building or manufactory or of the house and the park or garden”;

(c)for the words “part proposed” there shall be substituted the words “right proposed”; and

(d)for the words “part is” there shall be substituted the words “right is”.

Adaptation of the 1965 Act

3.—(1) The 1965 Act shall have effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are to be read (according to the requirements of the particular context) as referring to, or as including references to—

(a)the right acquired or to be acquired; or

(b)the land over which the right is or is to be exercisable.

(2) Without prejudice to the generality of sub-paragraph (1), Part 1 of the 1965 Act shall apply in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.

4. For section 7 of the 1965 Act (measure of compensation) there shall be substituted the following section—

In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of his, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.

5. For section 8 of the 1965 Act (which relates to cases in which a vendor cannot be required to sell part only of a building or garden) there shall be substituted the following—

(1)Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)—

(a)a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Lands Tribunal (“the tribunal”); and

(b)before the tribunal has determined that question the person satisfies the tribunal that he has an interest which he is able and willing to sell in the whole of the relevant land; and—

(i)where the land consists of a house, building or manufactory, that the right cannot be purchased without material detriment to that land; or

(ii)where the land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs, the Borough of Poole (Poole Harbour Opening Bridges) Order 2006(2) (“the Order”) shall, in relation to that person cease to authorise the purchase of the right and be deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such park or garden, the house to which it belongs, and the notice shall be deemed to have been served in respect of that interest on such date as the tribunal directs.

(2)Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section shall be determined by the tribunal.

(3)Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of six weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection prejudices any other power of the authority to withdraw the notice.”.

6. The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

(a)section 9(4) (failure by owners to convey);

(b)paragraph 10(3) of Schedule 1 (owners under incapacity);

(c)paragraph 2(3) of Schedule 2 (absent and untraced owners); and

(d)paragraphs 2(3) and 7(2) of Schedule 4 (common land),

shall be so modified as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.

7. Section 11 of the 1965 Act (powers of entry) shall be so modified as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right, it has power exercisable in the like circumstances and subject to the like conditions, to enter for the purposes of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the 1965 Act shall be modified correspondingly.

8. Section 20 of the 1965 Act (protection for interests of tenants at will etc.) shall apply with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.

9. Section 22 of the 1965 Act (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) shall be so modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

Article 23

SCHEDULE 4LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1)

(2)

(3)

Area

Number of land shown on deposited plans

Purpose for which temporary possession may be taken

Borough of Poole

36a, 37 and 38 41

Temporary construction access. Working site and temporary construction access.

Article 41

SCHEDULE 5PROTECTION OF POOLE HARBOUR COMMISSIONERS

1. For the protection of the Commissioners, the following provisions shall have effect and shall apply save as otherwise agreed in writing between the Council and the Commissioners.

2. In this Schedule—

“accumulation” means any accumulation of silt or other material which constitutes an impediment to navigation;

“the Channel” means the Back Water Channel;

“construction” includes execution, placing and maintenance and “constructed” shall be construed accordingly;

“erosion” means any erosion of the bed or banks of the Channel or other structure of whatever nature; and

3. Section 20(1) of the Poole Harbour Act 1914(3) (which requires works to be licensed by the Commissioners in accordance with that Act) shall not apply in the case of the authorised works.

4. The Council shall at all reasonable times during construction of the authorised works and thereafter allow the Commissioners, their servants and agents, access to those works and all reasonable facilities for inspecting any tidal work.

5. After the purpose of any temporary works has been accomplished, or after a reasonable period of notice in writing from the Commissioners requiring it so to do, the Council shall with all reasonable dispatch, remove any such temporary works or any materials relating thereto which may have been placed above or below the level of high water by or on behalf of the Council and, on its failing so to do within a reasonable period after receiving such notice, the Commissioners may remove the same and charge the Council with the reasonable expense of so doing, which expense the Council shall repay to the Commissioners.

6. If, during the construction of a tidal work or within 10 years after the completion of such work and as a consequence (whether in whole or in part) of its construction, there is caused or created an accumulation or erosion, the Council, if so requested by the Commissioners before or within the period of 10 years after such completion or exercise, shall remedy such accumulation or erosion in the manner specified in paragraph 8 and, if it refuses or fails so to do, the Commissioners may themselves cause the work to be done and may recover the reasonable cost thereof from the Council.

7. Should any accumulation or erosion in consequence of such construction arise within the period of 10 years mentioned in paragraph 6 and be remedied in accordance with paragraph 8, any recurrence of such accumulation or erosion shall from time to time be so remedied by the Council during that period of 10 years and at any time thereafter, save that the Council’s obligation under this paragraph shall cease in the event that following the remedying of any accumulation or erosion a period of 10 years elapses from the completion of that remedying, without any further accumulation or erosion being caused or created in consequence of such construction or exercise.

8. For the purpose of paragraphs 6 and 7—

(a)in the case of an accumulation, the remedy shall be its removal; and

(b)in the case of erosion, the remedy shall be the carrying out of such reconstruction works and other protective works or measures as may be necessary.

9. In the event that surveys, inspections, tests and sampling carried out pursuant to paragraph 12(b) establish that any accumulation or erosion mentioned in paragraphs 6 or 7 would have been caused in any event by factors other than the construction of a tidal work, the Council shall be liable to remedy such accumulation or erosion only to the extent that the same is attributable to such construction as aforesaid.

10. For the purposes of paragraph 6 the date of completion of a work shall be the date on which it is brought into use.

11. The Council shall—

(a)pay to the Commissioners the reasonable costs incurred by the Commissioners of such alterations to the marking and lighting of the navigational channel of the Channel as may be necessary during or in consequence of the construction of a tidal work;

(b)provide and maintain on any tidal works such fog signalling apparatus as may be reasonably required by the Commissioners and shall properly operate such apparatus during periods of restricted visibility for the purpose of warning vessels of the existence of the relevant works; and

(c)afford to the Commissioners such facilities as they may reasonably require for the placing and maintenance on any tidal works of signals, tide-boards, tide-gauges or other apparatus for the safety or benefit of navigation.

12. Without prejudice to the other provisions of this Schedule, the Council shall be responsible for, and make good to the Commissioners, all losses, costs, charges, damages and expenses however caused (including a proper proportion of the overhead charges of the Commissioners) which may reasonably be incurred or occasioned to the Commissioners by reason of or arising from or in connection with—

(a)the inspection of any of the tidal works by the Commissioners or their duly authorised representative;

(b)the carrying out of surveys, inspections, tests and sampling within and of the Channel (including the bed and banks of the Channel)—

(i)to establish the marine conditions prevailing prior to the construction of any of the tidal works in such area of the river as the authority have reasonable cause to believe may subsequently be affected by any siltation, scouring or other alteration which the Council is liable to remedy under this Schedule; and

(ii)where the Commissioners have reasonable cause to believe that the construction of any of the tidal works is causing or has caused any siltation, scouring or other alteration as aforesaid;

(c)the construction of any of the tidal works or the failure of any of the tidal works or the undertaking by the Commissioners of works or measures to prevent or remedy danger or impediment to navigation or damage to any property arising from such construction, exercise or failure; and

(d)any act or omission of the Council or its servants or agents whilst engaged in the construction or operation of any of the tidal works.

13. Without prejudice to the generality of paragraph 12, the Council shall indemnify the Commissioners from and against all claims and demands arising out of, or in connection with, such construction, exercise, failure or act or omission as is mentioned in that paragraph.

14. Nothing in this Schedule shall impose any liability on the Council to the extent that any losses, costs, charges, damages, expenses, claims or demands referred to in paragraphs 12 and 13 are attributable to negligence on the part of the Commissioners or of any person in their employ or of their contractors or agents.

15. The Commissioners shall give to the Council notice of any claim or demand in relation to which the Council may be liable under this Schedule and no settlement or compromise of any such claim or demand shall be made without the consent in writing of the Council.

16. The fact that any work or thing has been executed or done with the consent of the Commissioners and in accordance with any conditions or restrictions prescribed by the Commissioners or in accordance with any directions or award of an arbitrator or in accordance with any plans approved by the Secretary of State and any conditions or restrictions imposed by him shall not relieve the Council from any liability under the provisions of this Schedule.

17. With the exception of any duty owed by the Commissioners to the Council which is expressly provided for in the foregoing provisions of this Schedule, nothing in this order shall be construed as imposing upon the Commissioners either directly or indirectly, any duty or liability to which the Commissioners would not otherwise be subject and which is enforceable by proceedings before any court.

18. Save as provided in paragraph 3, nothing in this Order shall affect prejudicially any statutory or other rights, powers or privileges vested in, or enjoyed by, the Commissioners or the harbour master at the date of making of this Order.

Article 42

SCHEDULE 6FURTHER PROTECTION OF POOLE HARBOUR COMMISSIONERS AND USERS OF THE BACK WATER CHANNEL

1. The Council shall establish the Board in exercise of the powers conferred upon the Council by section 111 of the Local Government Act 1972(4).

2. The Council shall consult the Board on all matters affecting the management and operation of the bridges.

3. The Council shall take into consideration any matter, recommendation or representation which may from time to time be referred or made to it by the Board.

4.—(1) The Board shall consist of five persons.

(2) Two persons shall be appointed by the Council of whom—

(a)one shall represent the local police authority;

(b)one shall represent the local highway authority.

(3) Three persons shall be appointed by the Commissioners of whom—

(a)two shall represent harbour users; and

(b)one shall represent the Commissioners.

5. Appointments to the Board shall be made in accordance with a scheme prepared by the Council.

6. The Board may determine its own quorum and procedure and shall appoint a Chairman, who shall make arrangements for the Board to meet not less than twice a year.

7. If at any meeting of the Board the Chairman is not present the members present at the meeting shall choose one of their number to be the Chairman of the meeting.

8. Every question at a meeting of the Board shall be decided by a majority vote of the Board members present and voting.

9. If at any meeting of the Board there is an equality of votes on any question the Chairman shall have a second or casting vote which he may exercise for or against the status quo.

10. A member of the Board shall hold office for the period of 3 years from the date of his appointment and at the end of that period shall be eligible for reappointment.

11. A member of the Board may resign his office at any time by notice in writing given to the Chief Executive of the Council.

12. If the Board is satisfied that a member—

(a)has, without reasonable excuse, been absent from 2 consecutive meetings of the Board; or

(b)has become bankrupt or made an arrangement with his creditors; or

(c)is incapacitated by physical or mental illness from discharging the functions of a member; or

(d)is otherwise unable, unwilling or unfit to discharge the functions of a member;

the Board may declare his office as a member to be vacant and thereupon his office shall become vacant.

13. The Council shall make such facilities available to the Board for the conduct of its business as the Council shall determine necessary in order for the Board to carry out its functions.

Article 43

SCHEDULE 7PROTECTION OF THE ENVIRONMENT AGENCY

1. The following provisions shall, unless otherwise agreed in writing between the Environment Agency (in this article referred to as “the Agency”) and the Council, have effect.

2. In this Schedule—

“accumulation” means any accumulation of silt or other material;

“completion” in relation to a work means the date on which it is brought into use;

“construction” includes execution and placing, altering, replacing, relaying and removal and “construct” and “constructed” have corresponding meanings;

“drainage work” means any bank, wall or embankment of the Back Water Channel and any outfall or other structure or appliance constructed or used for land drainage, defence against sea water or tidal monitoring;

“erosion” means any erosion of the bed or shore of the Back Water Channel;

“the fishery” means the Back Water Channel and fish in, or migrating to or from, the Back Water Channel, and the spawn, habitat or food of such fish;

“plans” includes sections, descriptions, drawings, specifications and method statements and other such particulars;

“specified work” means any permanent or temporary work or operation authorised by this Order (which includes any dredging and any exploratory geotechnical investigations that may be undertaken); and

“watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers, and passages through which water flows (whether or not the flow is intermittent) except a public sewer within the meaning of the Water Industry Act 1991(5).

3.—(1) Before beginning to construct any specified work, the Council shall submit to the Agency plans of the work and such further particulars available to it as the Agency may reasonably require.

(2) Any such specified work shall not be constructed except in accordance with such plans as may be approved in writing by the Agency or as settled in accordance with paragraph 13.

(3) Any approval of the Agency required under this paragraph—

(i)shall not be unreasonably withheld;

(ii)shall be deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval; and

(iii)may be given subject to such reasonable requirements as the Agency may impose for the protection of any drainage work or fishery or water resources, for the prevention of flooding and water pollution and in the discharge of its environmental and recreational duties.

(4) Any specified work, and all protective works required by the Agency under sub-paragraph (3), shall be constructed—

(a)within such period (if any) as the Agency may consent to at the time of approval or upon an application by the Council thereafter (such consent not to be unreasonably withheld); and

(b)to the reasonable satisfaction of the Agency;

and the Agency shall be entitled by its officers to watch and inspect the construction of such works.

4. The Council shall give to the Agency notice in writing of the commencement of any specified work not less than 14 days prior to its commencement and notice in writing of its completion not later than 7 days after such completion.

5.—(1) If any part of the works comprising a structure in, over or under a drainage work is constructed otherwise than in accordance with the requirements of this Schedule, the Agency may by notice in writing to the Council require the Council, at the Council’s own expense, to comply with the requirements of this Schedule or (if the Council so elects and the Agency in writing consents, such consent not to be unreasonably withheld) to alter the work to the reasonable satisfaction of the Agency.

(2) Subject to sub-paragraph (3), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (1) is served on the Council, it has failed to begin taking steps to comply with the requirements of the notice and thereafter to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from the Council.

(3) In the event of any dispute as to whether sub-paragraph (2) is properly applicable to any work in respect of which a notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency shall not, except in emergency, exercise the powers conferred by sub-paragraph (2) until the dispute has been finally determined.

6.—(1) If, during the construction of any specified work, or within 10 years after the completion of such work, there is caused or created an accumulation or erosion or an alteration to tidal flow which in whole or in part is reasonably attributable to the construction of such work and which causes damage or reasonable expectation of damage, the Council shall, if so required by the Agency before or within the period of 10 years after such completion and to the extent that it is so attributable, remedy such accumulation or erosion or alteration to tidal flow in the manner specified in sub-paragraph (4) and, if it refuses to do so, the Agency may itself cause such remedy to be carried out and may recover the reasonable cost of so doing from the Council.

(2) Should any accumulation or erosion or alteration of tidal flow arise which causes such damage or reasonable expectation of damage arise within the said period of 10 years and be required to be remedied in accordance with sub-paragraph (1), any continuation or recurrence of such accumulation or erosion shall to the extent that it is reasonably attributable to the construction or operation of any specified work be so remedied by the Council during the said period of 10 years and at any time thereafter, save that the Council’s obligation under this sub-paragraph shall cease in the event that following the remedying of any accumulation or erosion or alteration of tidal flow a period of 10 years elapses without any further accumulation or erosion or alteration of the tidal flow.

(3) In sub-paragraphs (1) and (2) and in paragraph 7(5) “damage” means any damage or any adverse effect upon the structure or operation of any outfall, flood or sea defences or any jetty or other structure under the jurisdiction of the Agency for the purposes of the Water Resources Act 1991(6).

(4) For the purposes of sub-paragraphs (1) and (2)—

(a)in the case of an accumulation, the remedy shall be its removal or such other protective works or measures as may reasonably be required by the Agency;

(b)in the case of erosion or alteration of tidal flow, the remedy shall be the carrying out of such reconstruction works and protective works or measures as may reasonably be required by the Agency.

(5) To the extent that the Council establishes by surveys, inspections, tests or sampling that such accumulation or erosion or alteration of tidal flow referred to in paragraphs (1) or (2) would have been caused in any event by factors other than the construction or operation of a specified work, the Council shall not be liable to remedy such accumulation or erosion or alteration of tidal flow.

(6) In carrying out any surveys, inspections, tests or sampling under sub-paragraph (5) the Council shall not unreasonably delay the execution of any remedial action required under sub-paragraphs (1) or (2).

7.—(1) Subject to sub-paragraph (2), the Council shall from the commencement of the construction of the specified works and except to the extent that any approval given by the Agency under this Schedule permits otherwise, maintain in good repair and condition and free from obstruction any drainage work which is situated on land owned by the Council or which it has control of or is in occupation of for the purposes of or in connection with the construction of the specified works.

(2) The obligation imposed on the Council under sub-paragraph (1) does not apply where the Agency or another person is liable to maintain any such drainage work and is not precluded by the exercise of the powers of the Order from doing so.

(3) If any such specified work is no longer required by the Council or is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the Council at the Council’s own expense to repair and restore the drainage work, or any part thereof, or (if the Council so elects and the Agency consents, such consent not to be unreasonably withheld) to remove the specified work and restore the site (including any sea defences) to its former condition, to such an extent and within such limits as the Agency reasonably requires.

(4) If, on the expiration of 30 days from the date on which a notice is served upon the Council it has failed to comply with the requirements of the notice, the Agency may execute the works specified in the notice, and any expenditure incurred by it in so doing shall be recoverable from the Council.

(5) If by reason of the construction of any specified work or by reason of the failure of that work or of the Council to maintain it, the efficiency of any drainage work for flood defence purposes is impaired or that work is damaged, such impairment or damage shall be made good by the Council to the reasonable satisfaction of the Agency and, if the Council fails to do so, the Agency may make good the same and recover from the Council the expense reasonably incurred by it in so doing.

8.—(1) The Council shall take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work.

(2) If by reason of—

(a)the construction of any specified work; or

(b)the failure of any such work,

damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused the Agency may serve notice on the Council requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

(3) If within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the Council fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from the Council the expense reasonably incurred by it in doing so.

(4) In any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the Council the reasonable cost of so doing provided that notice specifying those steps is served on the Council as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

9.—(1) The Council shall indemnify the Agency in respect of all reasonable costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain—

(a)in the examination or approval of plans under this Schedule; and

(b)in the inspection of the construction of the specified works or any protective works required by the Agency under this Schedule.

(2) Without prejudice to the other provisions of this Schedule the Council shall indemnify the Agency from all claims, demands, proceedings, costs, damages or expenses or loss which may be made or taken against, or recovered from or incurred by, the Agency by reason of—

(a)any damage to any drainage work so as to impair its efficiency for the purposes of flood defence, or

(b)any damage to the fishery, or

(c)any raising or lowering of the water table in land adjoining the authorised works or any sewers or watercourses, or

(d)any flooding or increased flooding of any such lands,

which is caused by, or results from, the construction of any of the works or any act or omission of the Council, its contractors, agents or employees whilst engaged upon the work.

(3) The Agency shall give to the Council reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement of the Council which agreement shall not be unreasonably withheld.

10. The fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not (if it was done without neglect or default on behalf of the Agency, of any person in its employ or of its contractors or agents) relieve the Council from any liability under the provisions of this Schedule.

11. Nothing in paragraph 7(5) or 9(2) shall impose any liability on the Council in respect of accumulation or erosion or alteration of the tidal flow other than such accumulation or erosion or alteration of the tidal flow which the Council is liable to remedy under paragraph 6(1) or (2).

12. Except as otherwise provided by this Schedule nothing in this Order shall prejudice or affect in their application to the Agency the powers, rights, jurisdiction and obligations conferred, arising or imposed under the Land Drainage Act 1991(7), the Salmon and Freshwater Fisheries Act 1975(8), the Water Resources Act 1991(9) or any other enactment, byelaw or regulation relating to the Agency.

13.—(1) Unless the parties agree to arbitration any difference arising between the Council and the Agency shall be settled by the Secretary of State for Environment, Food and Rural Affairs on a reference to him by either party after notice in writing to the other.

(2) Subject to sub-paragraph (1), any difference arising between the Council and the Agency under this Schedule (other than a difference as to its meaning or construction) shall be referred to and settled by a single arbitrator appointed by agreement between the parties on reference to him by either party, after notice in writing to the other, or, in default of agreement, by the President of the Institution of Civil Engineers.

Articles 7, 8 and 44

SCHEDULE 8PROVISIONS RELATING TO STATUTORY UNDERTAKERS, ETC.

Apparatus of statutory undertakers, etc., on land acquired

1.—(1) Sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers etc. and power of statutory undertakers etc. to remove or re-site apparatus) shall apply in relation to any land acquired or appropriated by the Council under this Order subject to the following provisions of this paragraph; and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) shall have effect accordingly.

(2) In the provisions of the 1990 Act, as applied by sub-paragraph (1), references to the appropriate Minister are references to the Secretary of State.

(3) Where any apparatus of public utility undertakers or of a public communications provider is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1), any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the Council compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(4) Sub-paragraph (3) shall not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is—

(a)the owner or occupier of premises the drains of which communicated with that sewer, or

(b)the owner of a private sewer which communicated with that sewer,

shall be entitled to recover from the Council compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of making his drain or sewer communicate with any other public sewer or with a private sewage disposal plant.

(5) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which paragraph 2 below or Part 3 of the 1991 Act applies.

(6) In this paragraph—

“public utility undertakers” has the same meaning as in the 1980 Act; and

“public communications provider” has the same meaning as in section 151(1) of the 2003 Act.

Apparatus of statutory undertakers, etc., in stopped up streets

2.—(1) Where a street is stopped up under article 8 of this Order any statutory utility whose apparatus is under, in, upon, over, along or across the street shall have the same powers and rights in respect of that apparatus, subject to the provisions of this paragraph, as if this Order had not been made.

(2) Where a street is stopped up under article 8 of this Order any statutory utility whose apparatus is under, in, upon, over, along or across the street may and, if reasonably requested so to do by the Council, shall—

(a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it, or

(b)provide other apparatus in substitution for the existing apparatus and place it in such position as aforesaid.

(3) Subject to the following provisions of this paragraph, the Council shall pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—

(a)the execution of relocation works required in consequence of the stopping up of the street, and

(b)the doing of any other work or thing rendered necessary by the execution of relocation works.

(4) If in the course of the execution of relocation works under sub-paragraph (2)—

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the Council, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this paragraph would be payable to the statutory utility by virtue of sub-paragraph (3) shall be reduced by the amount of that excess.

(5) For the purposes of sub-paragraph (4)—

(a)an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus, and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole shall be treated as if it also had been agreed or had been so determined.

(6) An amount which apart from this sub-paragraph would be payable to a statutory utility in respect of works by virtue of sub-paragraph (3) (and having regard, where relevant, to sub-paragraph (4)) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) Sub-paragraphs (3) to (6) shall not apply where the authorised works constitute major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a)the allowable costs of the relocation works shall be determined in accordance with section 85 of that Act (sharing of cost of necessary measures) and any regulations for the time being having effect under that section, and

(b)the allowable costs shall be borne by the Council and the statutory utility in such proportions as may be prescribed by any such regulations.

(8) In this paragraph—

“apparatus” has the same meaning as in Part 3 of the 1991 Act;

“relocation works” means works executed, or apparatus provided, under sub-paragraph (2); and

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider.

Navigation undertakings

3.—(1) Subject to the following provisions of this paragraph, the powers under article 7 of this Order to break up or open a street shall not be exercisable where the street, not being a highway maintainable at public expense (within the meaning of the 1980 Act) is under the control or management of, or is maintainable by, a navigation authority, except with the consent of that authority.

(2) Sub-paragraph (1) shall not apply to the carrying out under this Order of emergency works, within the meaning of Part 3 of the 1991 Act.

(3) A consent given for the purposes of sub-paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but shall not be unreasonably withheld.

(4) In this paragraph “navigation authority” means any person who has a duty or power under any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary, harbour or dock.

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